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On the Nomination of Merrick Garland and the 2016 Election

On the Surface

The Constitution of the United States grants a sitting president the right to nominate a Supreme Court justice when a vacancy arises. One such vacancy occurred with the death of Antonin Scalia in February, but Senate majority leader Mitch McConnell proclaimed that Republicans would not even consider Obama’s nominee. The nomination of Merrick Garland proves Republican obstructionism to be an ill-advised decision–there are no winning scenarios, both before and after the presidential election.

The Rise of Merrick Garland and Pre-Election

When Mitch McConnell announced an unwillingness to meet with Obama’s nominee, invoking the “Biden Rule” (named after a proposal by Joe Biden not to fill a vacant Supreme Court seat during an election year–one that was never actually realized), he did so to pacify the far right of the GOP: those who wish to leave a seat vacant until a Republican wins in November (if it is, indeed, a Republican who wins). But in making this declaration, McConnell actually constricted himself: even if Obama selected a moderate judge who would otherwise be amenable to the GOP, Republicans would have been forced to oppose him or her anyway.

After much speculation, Obama nominated Merrick Garland, chief judge of the DC Court of Appeals and a man who is well-regarded by both parties. And by all accounts he is far from a liberal firebrand.

And this is the crux of Republicans’ woes. Had Obama chosen someone more liberal, Republicans could have legitimized their unwillingness to compromise. But Garland’s moderation feeds the narrative that the GOP is the party of obstructionism. And public opinion polls corroborate this idea, showing just how unpopular the Republican position is.

McConnell can’t back out now. He has gotten the GOP stuck in a precarious position, one whose impacts will undoubtedly be felt come the November elections.

After the Election

It’s a foregone conclusion that Hillary Clinton will be the Democratic nominee for president. And, while Republicans are employing all manner of tactics to forestall the advance of Donald Trump, he is nigh-inevitable as the Republican nominee. This leaves two scenarios, and neither play out well for Republicans.

If Clinton wins, it’s almost guaranteed that the sixty-four year-old Garland will be thrown aside and a much younger, more liberal version of Ruth Bader Ginsburg will be nominated. This justice will shape the law for decades in a way much too liberal for Republican comfort.

A Trump victory has the potential to be equally disastrous for the GOP. His disdain for the establishment is well-documented, especially given their recent efforts to derail his campaign. There’s no telling who Trump would nominate, but it’s possible that he would choose an antagonist to the GOP just to spite the party.